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EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into this 1st day of June, 1999, by and
between ELITE INFORMATION GROUP, INC., a Delaware corporation (the "Company"),
and XXXXXXXXXXX X. XXXXX (the "Executive").
WITNESSETH
WHEREAS, the Company wishes to engage the long-term services of
Executive to serve as Chief Executive Officer; and
WHEREAS, the Executive and the Company wish to evidence such engagement
by the terms hereof.
NOW, THEREFORE, in consideration of the mutual premises herein
contained, and intending to be legally bound, the parties hereto hereby agree as
follows:
1. EMPLOYMENT. The Company hereby employs the Executive and the
Executive hereby accepts employment from the Company upon the terms and
conditions hereinafter set forth.
2. TERM.
(a) The term of employment under this Agreement shall commence
as of the date hereof and shall extend for one (1) year from the date of
execution (the "Full Term"), and shall automatically renew for successive
one-year terms unless terminated sooner by either the Company or Executive as
hereinafter provided in this Section 2.
(b) The Company may, at its election, terminate the employment
of Executive and related obligations of the Company under this Agreement as
follows:
(1) FOR DISABILITY. For purposes of this
Agreement, Executive shall be deemed to be permanently disabled when Executive
has become unable, by reason of physical or mental disability, to perform the
majority of Executive's duties for a period of at least 180 consecutive days, as
determined by the Company's Board of Directors exercising reasonable judgment.
If Executive shall disagree with a determination by the Company that Executive
has become permanently disabled, the question of Executive's disability shall be
submitted to an impartial and reputable physician for determination, such
physician to be selected by mutual agreement of Executive and the Company or,
failing such agreement, selected by two physicians (one of which shall be
selected by the Company and the other by Executive), and the determination of
the question of Executive's permanent disability by such physician shall be
final and binding on Executive and the Company. The Company shall pay the
reasonable fees and expenses of such physician or physicians.
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In the event of the termination of this Agreement by
the Company because of Executive's permanent disability as determined in
accordance with the immediately preceding paragraph, the Company will promptly
pay to Executive, seven (7) days following execution of a general release of
claims against the Company (in the form attached hereto as Exhibit A), cash
termination compensation in a lump sum amount equal to Executive's annual gross
salary in effect on the date of such determination of permanent disability. The
Company shall also pay a Proportionate Amount of any incentive bonus which would
otherwise have been received by Executive with respect to the year in which such
determination is made within seven (7) days from such date as such amount may be
finally determined in accordance with the bonus plan set by the Board of
Directors for Executive (the "Determination Date"). The "Proportionate Amount"
shall be determined by multiplying (i) the total amount of such bonus that the
Executive would have received if he had worked throughout the year to which such
bonus applied times (ii) an amount equal to the total number of calendar days in
the year up to and including the date of termination divided by 365. In
addition, if the Company terminates Executive's employment pursuant to this
Section 2(b)(1), the Executive, and his eligible dependents, will be eligible
for continuation coverage pursuant to 29 U.S.C. ss161 et seq. ("COBRA"), and,
should he elect such coverage, the Company agrees to bear the entire expense of
such coverage without contribution by Executive for the period ending eighteen
(18) months following such termination (or such longer period as may
subsequently be provided by amendment to COBRA, if any). .
(2) FOR CAUSE. Should the Board of Directors
find that there is Cause (as defined below) to terminate Executive's employment,
the Board shall provide written notice to Executive setting forth with
reasonable specificity such event or events of Cause. Executive shall have
thirty (30) days following receipt of such notice to cure such event. If
Executive fails to cure such event within such time period, the Company may
terminate Executive's employment as provided below. The Company's termination of
Executive's employment for Cause must be made by giving a Notice of Termination
(as defined in Section 2(f) hereof) to Executive specifying which of the
following events constitutes Cause. For the purpose of this Agreement, Cause
shall mean the occurrence of any of the following events:
(i) Executive's substantial failure to carry
out and perform his material duties after written notice from the Board of
Directors;
(ii) Executive's repeated refusal to follow
the lawful directives of the Board of Directors;
(iii) Executive's commission of a felony
(other than a traffic violation);
(iv) Executive's commission of an act of
fraud, embezzlement, theft or other act of material financial dishonesty against
the Company;
(v) Executive's commission of an act
involving moral turpitude that brings the Company or any of its affiliates into
public disrepute or disgrace or causes material harm to customer relations,
operations or business prospects of the Company or its affiliates; or,
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(vi) Executive's material breach of the
material provisions of this Agreement or the Proprietary Information and
Inventions Agreement signed by Executive upon the commencement of his employment
with the Company (attached hereto as Exhibit B), including, but not limited to,
the provisions relating to the use and disclosure of the Company's confidential
information.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause without (i) written notice to Executive, as provided above,
setting forth the reasons for the Company's intention to terminate for Cause,
(ii) an opportunity for Executive, together with Executive's counsel, to be
heard before the Board of Directors of the Company, and (iii) delivery to
Executive of a Notice of Termination from the Board of Directors of the Company
finding that, in the good faith opinion of the Board of Directors, Executive was
guilty of conduct set forth above in clause (i), (ii), (iii) or (iv) above, and
specifying the particulars thereof in detail. In making the determinations
described in clauses (i), (ii), (iii) and (iv) of this subsection (b) of this
Section 2, the Company shall act reasonably and in good faith. If Executive is
terminated for Cause as provided in this Section 2(b)(2), Executive shall only
be entitled to receive his base compensation through the date of termination
plus any accrued but unused vacation.
(3) WITHOUT CAUSE. If Executive's employment is
involuntarily terminated for any reason other than "Cause" as discussed in
Section 2(b)(2) hereof the Company will promptly pay to Executive, seven (7)
days following execution of a general release of claims against the Company (in
the form attached hereto as Exhibit A), in cash and in a lump sum an amount
equal to the product of two multiplied by Executive's annual gross salary in
effect on the date of such involuntary termination. If such termination occurs
pursuant to a Change of Control, or within two (2) years of a Change of Control
(as defined below), the Company shall also pay Executive the larger of (i) the
Proportionate Amount of any incentive bonus which would otherwise have been
received by Executive with respect to the year in which such termination occurs
(payable seven (7) days after the Determination Date) or (ii) the incentive
bonus the Executive received in the year prior to the year of the termination
(such amount payable seven (7) days after the Determination Date of the
Proportionate Amount referenced in clause (i) above).
(c1) Executive may terminate his employment hereunder for
"Good Reason" (as defined below), which termination shall become effective ten
(10) days after delivery to the Company by Executive of a "Notice of
Termination" (as defined in Section 2 (f) hereof). In the event Executive
terminates this Agreement for "Good Reason," the Company will pay to Executive,
seven (7) days following execution of a general release of claims against the
Company (in the form attached hereto as Exhibit A), in cash and in a lump sum an
amount equal to the product of two multiplied by Executive's annual gross salary
in effect at the time of delivery of Executive's "Notice of Termination." If
such termination occurs for "Good Reason" as defined in clause (x) below (and
excluding "Good Reason" as defined in clause (y) below), the Company shall also
pay Executive the larger of (i) the Proportionate Amount of any incentive bonus
which would otherwise have been received by Executive with respect to the year
in which such notice is given within seven (7) days of its Determination Date or
(ii) the incentive bonus the Executive received in the year prior to the year in
which such notice is given (such amount
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payable seven (7) days after the Determination Date of the Proportionate Amount
referenced in clause (i) above). For purposes of this Agreement, "Good Reason"
shall mean (x) a "Change of Control" (as defined below) accompanied by a
Constructive Termination of this Agreement (as defined below) or (y) a failure
by the Company to comply with any material provision of this Agreement which has
not been cured within thirty (30) days after written notice of such
noncompliance has been given by Executive to the Company. For the purpose of
this Agreement, a "Change of Control," shall mean (1) less than a majority of
the members of the Board of Directors of the Company are persons who were either
nominated for election by the Board of Directors or selected by the Board of
Directors of the Company, (2) the stockholders of the Company approve a merger
or consolidation of the Company with any other corporation, other than a merger
or consolidation which would result in the "Voting Securities" (as defined
below) of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into "Voting
Securities" of the surviving entity) at least 50.1 percent of the total voting
power represented by the "Voting Securities" of the Company or such surviving
entity outstanding immediately after such merger or consolidation, or (3) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets. As used in this Agreement, "Voting
Securities" shall mean any securities of the Company which vote generally in the
election of directors. If there is more than one event causing a Change of
Control, the date the last such event occurs shall be the date the Change of
Control occurs for purposes of this subsection and subsections 2(b)(3) and
2(c)(2) hereof. For the purpose of this Agreement, "Constructive Termination"
shall mean that after the date hereof the Executive's position is altered such
that he ceases to have authority equivalent to that of the senior executive
officer of the Company or a successor in interest carrying on substantially all
of the business of the Company; provided, however, that Constructive Termination
shall not include (q) the naming of a non-employee director as Chairman of the
Board of the Company, or (r) a Change of Control or other corporate transaction
whereby the Company becomes part of another entity if the Executive remains the
senior executive officer of the division, subsidiary or other entity carrying on
the business currently conducted by the Company.
(c2) Executive may terminate his employment hereunder
effective at any time following the first anniversary, and before the second
anniversary, of a Change of Control (as defined above), which termination shall
become effective sixty (60) days after delivery to the Company by Executive of a
"Notice of Termination" (as defined in Section 2 (f) hereof). In the event
Executive terminates this Agreement as provided in this subsection (c2), the
Company will pay to Executive, seven (7) days following execution of a general
release of claims against the Company (in the form attached hereto as Exhibit
A), in cash and in a lump sum an amount equal to the product of one and one half
(1.5) multiplied by Executive's annual gross salary in effect at the time of
delivery of Executive's "Notice of Termination."
(d) Executive may terminate this Agreement without cause
upon ninety (90) days written notice provided in accordance with Section 2(f),
below. In such event, Executive shall be entitled to receive his base
compensation during such notice period, and any accrued but unused vacation upon
such termination, but shall not be otherwise entitled to any compensation from
the Company except to the extent that he has any vested rights under any of the
Company's
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employee benefits plans as of the termination date. In the event that Executive
dies during the term of this Agreement, the Company will pay to Executive's
estate the Proportionate Amount of Executive's bonus, if any, for the period
during which such death occurs within seven (7) days of the Determination Date.
(e) In the event of any termination of employment
pursuant to Section 2(b)(3) or Section 2(c) hereof, the Executive shall have no
obligation to seek employment.
(f) Any termination of Executive's employment by the
Company or by Executive shall be communicated by written Notice of Termination
to the other party hereto. For purposes of this Agreement, Notice of Termination
shall mean a notice which (i) shall indicate the specific termination provision
in this Agreement relied upon, (ii) shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated, and (iii) shall, in the
event of termination for Cause, set forth the date that notice of Cause to
terminate was provided to Executive and that Executive has failed to cure such
event within the period provided in Section 2(b)(2). For purposes of this
Agreement, any purported termination of Executive's employment which is not
effected pursuant to a Notice of Termination which complies with this subsection
(e) shall not be effective. Whenever in this Agreement reference is made to a
"termination of employment," unless specifically stated otherwise or the context
otherwise requires, such references are to be understood to refer to a
termination pursuant to Section 2(b) or 2(c) and not to an expiration of the
Full Term or an expiration or termination of employment during any extension or
renewal of the Full Term.
3. COMPENSATION.
(a) SALARY AND BONUS. For all services rendered by the
Executive to the Company, the Company shall pay the Executive a salary of
$300,000 per year payable in such installments and at such times as conform to
the Company's normal payroll procedures. Executive's base salary rate shall be
reviewed by the Company annually and may be adjusted from time to time only with
the approval of the Compensation Committee of the Board of Directors.
Executive's salary shall not, during the term of this Agreement, be less than
such amount. Salary and other applicable compensation payments shall be subject
to withholding and other applicable taxes. Executive shall receive such
compensation increases, incentive bonuses and other compensation as may be
determined by the Board of Directors of the Company or any committee thereof, in
accordance with the Company's then existing salary, incentive bonus and other
compensation plans.
(b) PERQUISITES. Executive shall be eligible for such
fringe benefits (such as insurance and vacations) and perquisites (such as
office size and location, secretarial and clerical staff) normally provided to
employees of the Company generally having responsibility commensurate to that of
the Executive and such additional benefits as may be from time to time agreed
upon in writing between Executive and the Company. Executive shall be entitled
to paid annual vacation of up to 4 weeks per year.
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(c) BENEFIT PLANS. Executive shall be entitled to
continue to participate in all of its employee benefit plans and arrangements in
effect on the date hereof in which Executive participates and for which
Executive is eligible. The Company shall not make any changes in such plans or
arrangements, except as required by law, which would adversely affect
Executive's rights or benefits thereunder, unless such change occurs pursuant to
a program applicable to all executives of the Company and does not result in a
proportionately greater reduction in the rights of or benefits to Executive as
compared with any other executive of the Company. Executive shall be entitled to
participate in or receive benefits under any employee benefit plan or
arrangement made available by the Company in the future to its executives and
key management employees (including, without limitation, any incentive or other
bonus plans or arrangements), subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Nothing paid to Executive under any plan or arrangement presently in effect or
made available in the future shall be deemed to be in lieu of the salary or
incentive bonus or other compensation payable to Executive pursuant to any
provision of this Section 3. Any payments or benefits payable to Executive
hereunder in respect of any calendar year during which Executive is employed by
the Company for less than the entire such year shall, unless otherwise provided
in the applicable plan or arrangement, be prorated in accordance with the number
of days in such calendar year during which Executive is so employed.
(d) INDEMNIFICATION. Executive shall be entitled to
indemnification by the Company from liability to third parties or threatened or
pending actions, suits or proceedings by or in the right of the Company, by
reason of the fact that Executive is or was serving as an officer or director of
the Company (or is or was serving at the Company's request as an officer or
director of some other enterprise), which is at least as favorable to Executive
as the indemnification provided by the Company to its other senior executive
officers, including any indemnification provided pursuant to a written agreement
between the Company and its other executive officers, with respect to such
matters.
(e) EXPENSES. The Company shall promptly reimburse
Executive for all ordinary and necessary expenses incurred and paid by Executive
in the course of the performance of Executive's duties pursuant to this
Agreement and consistent with the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses, and subject
to the Company's requirements with respect to the manner of reporting such
expenses.
(f) OTHER BENEFITS. Executive may elect to purchase a
long-term care or personal disability policy in his name and Company will pay
one-half of the premiums for such policy, with the Company's portion not to
exceed $2500 per year, during the term of this Agreement. Should Executive's
employment be terminated pursuant to Section 2(b)(1) hereof, the Company shall
continue to make such payments following such termination during the period, if
any, in which Executive elects COBRA coverage.
(g) LEGAL FEES. The Company will reimburse Executive, up
to $2500, for any legal fees and costs incurred by Executive in the negotiation
of this Agreement.
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4. DUTIES. Executive is engaged as the Chairman and Chief
Executive Officer of the Company and hereby promises to perform and discharge
well and faithfully the duties commensurate with such positions which may be
assigned to him from time to time by the Company in connection with the conduct
of its business. The Company shall use its best efforts to elect Executive to,
and maintain him on, the Board of Directors of the Company during the term
hereof. If Executive is elected or appointed a director or officer of the
Company or any subsidiary thereof during the term of this Agreement, Executive
will serve in such capacity without further additional compensation.
5. EXTENT OF SERVICES. The Executive shall devote his entire
time, attention and energies to the businesses of the Company and shall not
during the term of this Agreement be engaged in any other business activity,
whether or not such business activity is pursued for gain, profit or other
pecuniary advantage; provided, however, this shall not be construed as
preventing the Executive from investing his personal assets in businesses which
do not compete with the Company in such form or manner as will not require any
significant services on the part of the Executive in the operation of the
affairs of the companies in which such investments are made and in which his
participation is solely that of an investor, except that the Executive may serve
as a director of a company having businesses which do not compete with the
Company or as otherwise authorized by the Board of Directors, so long as such
service does not interfere with his duties and services hereunder, and except
that the Executive may purchase securities in any corporation whose securities
are regularly traded, provided that such purchases shall not result in his
collectively owning beneficially at any time 1% or more of the equity securities
of any corporation engaged in a business competitive to that of the Company. As
used in this Section 5, a business shall be deemed to compete with the Company
if it is described in Section 7(a)(i) of this Agreement.
6. COVENANT NOT TO DISCLOSE. Executive acknowledges that during
the course of his employment with the Company he has or will have access to and
knowledge of certain information and data which the Company considers
confidential, and that the release of such information or data to unauthorized
persons would be extremely detrimental to the Company. As a consequence,
Executive hereby agrees and acknowledges that he owes a duty to the Company not
to disclose, and agrees that, during or after the term of his employment,
without the prior written consent of the Company he will not communicate,
publish or disclose, to any person anywhere or use any Confidential Information
(as hereinafter defined) for any purpose except where necessary or appropriate
to carry out his duties as contemplated by this Agreement or as required by law
or legal process. Executive will use his best efforts at all times to hold in
confidence and to safeguard any Confidential Information from falling into the
hands of any unauthorized person and, in particular, will not permit any
Confidential Information to be read, duplicated or copied except where necessary
or appropriate to carry out his duties as contemplated by this Agreement or as
may be required by law or legal process. Executive will return to the Company
all Confidential Information in Executive's possession or under Executive's
control when the duties of Executive no longer require Executive's possession
thereof, or whenever the Company shall so request, and in any event will
promptly return all such Confidential Information if Executive's relationship
with the Company is terminated and will not retain any copies thereof. For
purposes hereof the term "Confidential Information" shall mean any information
or data used by or belonging or relating to the Company that is not known
generally to the industry in which the Company is or may be engaged, including
without
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limitation any and all trade secrets, proprietary data and information relating
to the Company's past, present or future business, price lists, customer lists,
names of Company employees, performance assessments of Company employees,
processes, procedures or standards, know-how, manuals, business strategies,
records, drawings, specifications, designs, financial information, whether or
not reduced to writing, or information or data which the Company advises
Executive should be treated as confidential information.
7. COVENANT NOT TO COMPETE.
(a) Executive agrees that during the term of his
employment by the Company and for a period of one (1) year from and after the
voluntary or involuntary termination of such employment (such term of employment
and one year period thereafter are referred to collectively herein as the
"Noncompetition Period"), he will not, directly or indirectly, without the
express written consent of the Company:
(i) own or have any interest in or act as an
officer, director, partner, principal, employee, agent, representative,
consultant or independent contractor of, be retained by, render consulting or
advisory services regarding designing, developing, producing, selling or
marketing to, or in any way assist, any person, firm, corporation, partnership,
business trust, limited liability company or any other entity or business
located in or doing business anywhere in the United States which is engaged in
competition in any manner with any business at any time during the
Noncompetition Period then engaged in by the Company or by any subsidiary,
parent or affiliate of the Company, including, without limitation, any such
person, entity or business that is then in the business of developing or
marketing software to law firms;
(ii) divert or attempt to divert clients, customers
(whether or not such persons have done business with the Company once or more
than once) or accounts of the Company; or
(iii) entice, induce or in any manner influence any
person who is or shall be in the employ or service of the Company to leave such
employ or service.
(b) With respect to Executive's obligations under this
Section 7, Executive acknowledges that the Company's geographic market is in the
United States, Canada and the United Kingdom.
(c) The restrictions contained in this Section 7 are
considered by the parties hereto to be fair, reasonable and necessary for the
protection of the legitimate business interests of the Company.
8. CERTAIN REMEDIES.
(a) Recognizing that irreparable injury will result to
the Company in the event of the breach or threatened breach of any of the
foregoing covenants and assurances by Executive contained in Sections 6 and 7
hereof, and that the Company's remedies at law for any such breach or threatened
breach will be inadequate, the Company and its successors and assigns, in
addition to such other rights or remedies which may be available to them
(including, without limitation, recovery of monetary damages from Executive),
shall be entitled to an
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injunction, including a mandatory injunction, to be issued by any court of
competent jurisdiction ordering compliance with this Agreement or enjoining and
restraining Executive, and each and every person, firm or company acting in
concert or participation with Executive, from the continuation of such breach
and, in addition thereto, Executive shall pay to the Company all ascertainable
damages, including costs and reasonable attorneys' fees, sustained by the
Company by reason of the breach or threatened breach of said covenants and
assurances.
(b) In addition to the remedies described in subsection
(a) of this Section 8, the Company shall no longer be obligated to make any
payments otherwise due or to provide any benefits under Section 2 or 3 of this
Agreement in the event of any breach of Section 6 or 7 of this Agreement.
(c) The obligations and rights of Executive, the Company,
and their successors and assigns under the last sentence of Section 2(b)(1) and
Sections 6, 7 and 8 of this Agreement shall survive the termination of this
Agreement.
(d) The covenants and obligations of Executive set forth
in Sections 6 and 7 of this Agreement are each independent covenants and are in
addition to and not in lieu of or exclusive of any other obligations and duties
of Executive to the Company, whether express or implied in fact or in law.
(e) Except as provided in Section 8(a) above, in the
event that Executive asserts any claim arising out of or relating to Executive's
employment relationship with the Company, or in the event that the parties have
any dispute under this Agreement, Executive and the Company agree to submit any
such matter to final and binding arbitration, upon a request submitted by
Executive in writing to the Company within sixty (60) days from the date the
claim arose. If the Company does not receive a written request for arbitration
from Executive within sixty (60) days from the date the claim arose, or within
such other time period provided herein, Executive will have waived any right to
raise the claim, in any forum, arising out of Executive's employment
relationship with the Company. Statutory claims can be raised within the
limitations period provided by the applicable statute.
(1) IN CONSIDERATION FOR AND AS A MATERIAL CONDITION OF
EMPLOYMENT AND CONTINUATION OF EMPLOYMENT WITH THE COMPANY,
EXECUTIVE AGREES THAT FINAL AND BINDING ARBITRATION IS THE
EXCLUSIVE MEANS FOR RESOLVING COVERED DISPUTES; NO OTHER
ACTION MAY BE BROUGHT IN COURT OR IN ANY OTHER FORUM. THIS
AGREEMENT IS A WAIVER OF ALL RIGHTS TO A CIVIL COURT ACTION
FOR A COVERED CLAIM; ONLY AN ARBITRATOR, NOT A JUDGE OR JURY,
WILL DECIDE THE CLAIM.
(2) Claims covered by this Section 8(e) include, but are
not limited to, the following: (i) alleged violations of
federal, state and/or local constitutions, statutes or
regulations, including, but not limited to, laws dealing with
unlawful discrimination and harassment; (ii) claims based on
any purported breach of contractual obligation, including but
not limited to breach of the covenant of good faith and fair
dealing, wrongful termination or constructive termination;
(iii)
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violations of public policy; (iv) claims based on contract or
tort; and (v) claims arising under any provision of this
Agreement, including the formation, validity, interpretation,
effect or alleged breach of this Agreement. THIS INCLUDES, BUT
IS NOT LIMITED TO, CLAIMS BROUGHT UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964; CALIFORNIA GOVERNMENT CODE SECTION 12960,
et seq.; AND ANY OTHER FEDERAL, STATE OR LOCAL
ANTI-DISCRIMINATION LAWS RELATING TO DISCRIMINATION INCLUDING
BUT NOT LIMITED TO THOSE BASED ON THE FOLLOWING PROTECTED
CATEGORIES: SEX AND GENDER; RACE; RELIGION; NATIONAL ORIGIN;
MENTAL OR PHYSICAL DISABILITY (INCLUDING CLAIMS UNDER THE
AMERICAN WITH DISABILITIES ACT); MEDICAL CONDITION (CANCER);
VETERAN OR MILITARY STATUS; AGE; PREGNANCY; AND RETALIATION
FOR ALLEGING OR FILING ANY GRIEVANCE RELATING TO THE
AFOREMENTIONED CATEGORIES.
(3) The following claims are expressly excluded and not
covered by this agreement for final and binding arbitration:
(i) claims related to workers' compensation and unemployment
insurance; (ii) claims which relate to or arise out of an
alleged breach of Sections 6 and 7 of this Agreement; (iii)
administrative filings with governmental agencies such as the
Equal Employment Opportunity Commission or National Labor
Relations Board; and (iv) claims that are expressly excluded
by statute or are expressly required to be arbitrated under a
different procedure pursuant to the terms of an Executive
benefit plan.
(4) Any claim arising between Executive and the Company
covered by the arbitration provisions of this Agreement will
be submitted to final and binding arbitration in the State of
California pursuant to the employment dispute resolution rules
of the American Arbitration Association in effect upon the
date the claim is submitted in writing to the Company, to
which rules the parties hereby expressly agree. In making his
or her award, the Arbitrator shall have no power to add to,
delete from or modify the terms of this Agreement, or to
construe implied terms or covenants herein, the parties being
in agreement that no such implied terms or covenants are
intended. The Arbitrator shall have the authority to make any
finding congruent with applicable law. In reaching his or her
decision, the Arbitrator shall adhere to relevant law and
applicable legal precedent, and shall have no power to vary
therefrom. At the time of issuing his or her award, the
Arbitrator shall, in the award or separately, make specific
findings of fact, and set forth such facts in support of his
or her decision, as well as the reasons and basis for his or
her opinion. Should the Arbitrator exceed the jurisdiction or
authority here conferred, any party aggrieved thereby may file
a petition to vacate, amend or correct the Arbitrator's award
in a court of competent jurisdiction. Should Executive pursue
any dispute covered by the arbitration provisions of this
Agreement by any method other than said arbitration, the
Company shall be entitled to recover from Executive all
damages, costs, expenses, and attorneys' fees incurred as a
result of such action.
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(5) The Company will pay two-thirds and Executive will
pay one-third of the arbitrator's fees and costs. Each party
shall be responsible for payment of its attorneys' fees.
9. POTENTIAL UNENFORCEABILITY OF ANY PROVISION. If a final
judicial determination is made that any provision of this Agreement is an
illegal, invalid or unenforceable restriction against Executive, the provisions
hereof shall be rendered void only to the extent that such judicial
determination finds such provision or provisions illegal, invalid or
unenforceable, and such illegal, invalid or unenforceable provision or
provisions shall automatically be reconstituted and become a part of this
Agreement, effective as of the date first written above, to the maximum extent
in favor of the Company that is lawful, valid and enforceable, as the case may
be. A judicial determination that any provision of this Agreement is illegal,
invalid or unenforceable shall in no instance render the entire Agreement
illegal, invalid or unenforceable, as the case may be, but rather the Agreement
will continue in full force and effect absent any illegal, invalid or
unenforceable provision or portion thereof to the maximum extent permitted by
law and as contemplated by the immediately preceding sentence.
10. WAIVER OF BREACH. Failure of the Company to demand strict
compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of that term, covenant or condition, nor shall any waiver or
relinquishment by the Company of any right or power hereunder at any one time or
more times be deemed a waiver or relinquishment of that right or power at any
other time or times.
11. ENTIRE AGREEMENT; AMENDMENT. This Agreement, and the
Proprietary Information and Inventions Agreement executed by and between
Executive and Elite Information Systems, Inc., cancel and supersede all previous
agreements relating to the subject matter hereof and thereof, written or oral,
between the parties hereto and contain the entire understanding of the parties
hereto and shall not be amended, modified or supplemented in any manner
whatsoever except as otherwise provided herein or in writing signed by each of
the parties hereto.
12. CAPTIONS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
otherwise modify any of the terms or provisions hereof.
13. GOVERNING LAW. This Agreement and all rights and obligations
of the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of California.
14. NOTICE. All notices, requests, demands and other
communications hereunder shall be deemed duly given if delivered by hand or if
mailed by certified or registered mail with postage prepaid as follows:
If to the Company:
Broadway & Seymour, Inc.
c/o Elite Information Systems, Inc.
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0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Chief Financial Officer
If to Executive:
Xxxxxxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxxx
Xx Xxxxxx, XX 00000
or to any other address as either party may provide to the other in writing.
15. ASSIGNMENT. This Agreement is personal and not assignable by
Executive, but it may be assigned by the Company without notice to or consent of
Executive, and shall thereafter be binding upon and enforceable by any person
which shall acquire or succeed to substantially all of the business or assets of
the Company (and such person shall be deemed included in the definition of the
Company for all purposes of this Agreement), but is not otherwise assignable by
the Company. This Agreement and all rights of Executive hereunder shall inure to
the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts would still be
payable to him hereunder had Executive continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee, or other designee or, if there
be no such designee, to Employer's estate.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed in duplicate, and Executive has hereunto set his hand, on the day and
year first above written.
COMPANY: EXECUTIVE
ELITE INFORMATION GROUP, INC.
By: /s/ Xxxxxx X. Xxxx /s/ Xxxxxxxxxxx X. Xxxxx
------------------------- ---------------------------
Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
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EXHIBIT A
FORM OF GENERAL RELEASE
NO INFORMATION FILED
EXHIBIT B
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
NO INFORMATION FILED
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